from the it's-time-to-start-disassembling-the-Third-Party-Doctrine dept

The Supreme Court's recent finding that warrantless cell phone searches are unconstitutional is already generating some pretty interesting arguments in ongoing cases. The government obviously wishes to mitigate the "damage" done by this decision by still doggedly pursuing data through warrantless methods.

In this particular case, the government is arguing that it has every right to access cell site location information (CSLI) without a warrant, claiming that the Riley decision solely pertains to the contents of cell phones. Obtaining CSLI without a warrant is still Constitutionally-dubious, however. One state court and a federal court have held that this information should only be obtained with a warrant. In the prior case, it was found that the state's Constitution provided more protection than the US Constitution and in the latter, the finding was very narrowly tailored to the case at hand, making it very difficult to apply to others cases, even under the same jurisdiction.

While the government makes the usual claims about third party data and warrant requirements being an undue burden, the appellant's reply takes those arguments apart.

The government is quite candid in its brief that it wishes to use cell phone location data to conduct dragnet surveillance without any individualized suspicion, or even a belief that a crime has occurred. It claims that CSLI is a simple building block at the beginning of an investigation that is the equivalent of chatting with bystanders. Riley refused to countenance this warrantless practice when it explained that location data qualifies as one of the “privacies of life” that the Fourth Amendment protects.

The appellant's reply further disassembles the government's assertion that grabbing cell location info is like "chatting with bystanders" in order to help "build an investigation." In one footnote, it asks why the government feels it shouldn't need a warrant for the cell location data when it obviously found a warrant necessary elsewhere, belying its "building an investigation" claim.

Here, this argument is demonstrably false. Appellants had already been arrested and indicted–and multiple search warrants had already been issued–before the government first sought the 18 U.S.C. § 2703(d) orders. In fact, some of the warrants were to search the cell phones.

In another, it attacks the ridiculousness of the Third Party Doctrine, which the government claims gives it the "right" to grab records without warrants and, in essence, turns the cell provider into nothing more than an impartial witness/bystander.

Contrary to the government’s assertion, nobody at Sprint witnessed Appellants’ movements, let alone any criminal activity. The government required Sprint to record his movements, using Sprint as the custodian. The technology itself needs only ephemeral and anonymous detection of location. Using this artefact of the technology as a retrospective homing beacon does not transform Sprint into a witness. Without the government’s action, no person would have ever known or seen the Appellants’ every move over the course of seven months.

If there's anything the court should pay particular attention to, it's this footnote. The government has successfully argued for years that so-called "business records" carry no expectation of privacy while hiding the fact that many of these records are maintained to meet government regulations. The government compels the production of records and then claims it should have broad, warrantless access to them because cell phone owners "voluntarily" generated these by using their phones. It ignores the fact that there's no way for customers to opt out of these collections, short of not using a phone. This ties into the Riley decision, in which the Supreme Court noted that having a cell phone isn't some sort of luxury enjoyed by a small percentage of the population but a necessity of modern life.

from the because-of-course-they-will dept

Following this week's landmark ruling from the Supreme Court that says law enforcement must get a warrant to search mobile phones, law enforcement folks are clearly freaking out. A bunch of folks are quoted on how "awful" this ruling is, as they pretend that getting a warrant is such an incredible burden. Jim Pasco, the executive director of the Fraternal Order of Police, points out that due process should be ignored when gangs are around:

Jim Pasco, executive director of the Fraternal Order of Police, the country's largest police union, imagined the police busting a drug deal with two suspects, one who gets cuffed and another who gets away.

The arresting officers “want to get into that phone and see if they can get the other guy,” he said in an interview. “Or gang situations. They communicate almost exclusively by phone. There's more at stake here than due process. It's public safety.”

Meanwhile, another police spokesperson overreacts by suggesting warrants are somehow difficult to get:

Besides the delay, one problem is such a warrant might not be approved, said Bill Johnson, executive director of the National Association of Police Organizations, which counts about 240,000 rank-and-file police officers as members.

“You have to make that jump: I bet he's got a bunch of stuff on his phone. And that's not good enough,” he said. “The officers are really going to have to point to something specific that ties that phone or that suspect's use of phones to the commission of a crime.”

He makes that sound horrible, but that's what the Constitution says. Just because there may be bad stuff in someone's house the police don't get to just search it. They have to point to something specific. That's the 4th Amendment. Has Johnson never read it?

Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure "full compliance" with the decision.

"We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," Canale said.

Notice how the focus is on figuring out more ways to search phones, not more ways to make sure they obey the law. This doesn't make me feel any safer. Quite the opposite.

from the terrible-arguments-made-terribly dept

The other Supreme Court case dealing with warrantless cell phone searches heard oral arguments this week, with some intermingling from a lawyer presenting the US government's side in a related case (US v. Wurie). We recently covered the government's arguments for warrantless searches in US v. Wurie, a case dealing with outdated technology -- a flip phone. This case (Riley v. California) is from 2013 and deals with a smartphone, one that received a much deeper search by police officers.

In both cases, no one sought a warrant. The government argued in the Wurie case that a warrant "served no purpose" but to allow the locked-up criminal to erase evidence from a phone in police possession. Lots of technological speculation was presented, suggesting that every small-time crook would wipe or encrypt their phone to prevent the recovery of evidence. The government presented a tech arms race where law enforcement is always losing as the impetus for throwing the Fourth Amendment out the precinct window.

Strangely, in both cases, the government has made the claim that the officers involved already had enough probable cause to secure a warrant, but they simply chose not to. Jeffrey Fisher, arguing for Riley, points out that this is no excuse.

This Court has said time and again that the mere fact the police could have gotten a warrant but didn't does not excuse a Fourth Amendment violation.

If this "we could have gotten a warrant" excuse seems familiar, it's because it's been used far too often to justify warrantless searches. Earlier this year, the Tallahassee Police Dept., in its defense of its privacy-violating Stingray deployment, told a judge that it could have secured a warrant (but didn't) with all the probable cause it had in its possession, a statement that prompted this outraged response:

When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

"No, no, no, no, no," he said. "I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology."

His fellow judge then interjected loudly, "Two-hundred times they have not."

So, there's the government antipathy towards warrants on full display. But the warrant process does something very important: it forces the police to justify the search, narrow the scope and put it all in front of a (supposed) neutral party -- a magistrate judge. In actuality, it's usually a very speedy process, but during these arguments, the government acts like it's a horribly laborious imposition.

In Riley's case, the lack of warrant requirement allowed the police to browse Riley's phone until it found something incriminating.

He [detective] said, at JA­11, we looked at a whole lot of stuff on the phone and that's just what, in his words, "caught his eye."

As Fisher points out, the government's idea of protecting someone's rights involves searching first and allowing questions to be asked later -- a complete inversion of how the Fourth Amendment is supposed to work.

What the government says is let the officer look and then have a back­end hearing where you just suppress all the stuff that he wasn't supposed to look at once you apply particularity requirements.

This attitude (also on display in the Wurie response) presumes people will make it to that point, rather than taking a plea or simply not having the resources to fight a suppression battle in court. This places the onus on the wrong party and puts citizens in the terrible position of policing law enforcement at their own expense.

As the justices point out during their discussion with Fisher, there are still exceptions available to police even if a warrant requirement were put in place. It's a big loophole but one that should be considered necessarily rare (which it probably won't be in practice): exigent circumstances.

During this discussion, an interesting point emerged. The state itself reached the same conclusion as Riley's legal team: there's no useful analogue from past cases that offers comparative circumstances for today's smartphones.

[W]e have an exploratory search where not even the State has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days.

The government's favorite apples-to-oranges comparison -- the diary -- is even worse than simply saying the phone is nothing more than an address book with some pictures between the pages. Not only is it a relatively worthless comparison, but even the few originating cases are outliers. For the government to consider a phone to be a diary, it has to ignore huge amounts of context before beating the argument to fit and painting it to match, as Fisher points out.

The reason I think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside the home with them. It was kept in a private drawer in the bedroom or wherever it might be kept, and in the highly, highly unusual circumstance where somebody did, you might have a hard case.

This… is the opposite world. The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone. You can't leave the house without it and be ­--­ consider yourself to be responsible and safe. And so you take ­­ to take a world where the police might try to say, we can get the stray diary because of the importance of the categorical rule under Robinson and try to apply that into a world where everybody has everything with them at all times…

Edward Dupont, representing California, advances a familiar government argument -- if it doesn't violate in a singular instance, then expansive searches pertaining to the same sort of subject matter doesn't suddenly result in a Fourth Amendment violation. (This has been deployed in defense of the NSA's surveillance programs.)

The theory, even if I'm carrying only five photographs or if I'm carrying two letters as was the case in the Chiagles case, for instance, that Judge Cardozo decided in the '20s, they are likely to be very personal, very private photographs. So I'm not sure that the expansion of volume increases the invasion of privacy.

On one hand, multiplication by zero. On the other hand, smartphones aren't just ostentatious data generators -- they have practical uses as well. To quote a decision from the Massachusetts Supreme Court which ruled warrantless access to cellphone GPS data was unconstitutional:

"People buy [cellular telephones] to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a [cellular telephone] to share detailed information about their whereabouts with the police"

Justice Kagan asks if any arrest (a seatbelt violation in this instance) should allow police to search cell phones. Dumont calls that a "marginal case" and not relevant to the discussion. Kagan disagrees:

Your argument and the Solicitor General's principal argument applies to any arrest. And it applies to everything on a cell phone. People carry their entire lives on cell phones. That's not a marginal case. That's the world we live in, isn't it?

Dumont then argues that this particular case doesn't deal with an "entire life" on a cellphone, so this potentiality shouldn't be considered. Fair enough, in terms of particulars, but this is the Supreme Court -- the highest court in the land. What it decides becomes standard operating procedure for law enforcement from this point on. Dumont seems to think he can conveniently bury his head in this case and ignore the numerous implications it raises. Justice Ginsburg makes this point.

The Court is to make a rule not for this particular case, but for this category of cases. And I think what Justice Kagan pointed out is very nervous concern. [...] It's your rule, then, that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime. Is it all misdemeanors, all misdemeanors and that opens the world to the police.

Dumont then claims that this case is "different" because it involved a "violent" suspect, rather than a lesser form of criminal. Justice Kennedy smacks that argument into the stands.

MR. DUMONT: I think you need to look at the generality of cases. And in the generality of cases, first of all, you will not be dealing with minor crimes. You'll be dealing with serious crimes. And second, you'll be dealing with police who are --­­ undo their job by booking ­­--

JUSTICE KENNEDY: Are you saying we're just resting on the discretion of the officer? Because if that's so, then that leads to the next question. Well, if that's so, then we'll get a warrant.

After that, Dumont tries to make the point that sometimes there's not going to be an opportunity to get a warrant, which apparently he feels is problematic enough that any warrant requirement should be eliminated. Kennedy reminds Dumont that he's wandered back into "exigent circumstances" territory, an option that will still be available even if the Court decides warrants are necessary.

Justice Breyer tries to nail down where the government actually stands on the warrant issue.

So there are three possibilities: Possibility one, smartphone, no, get a warrant, unless exigent circumstances. Possibility two, yes, it's just like a piece of paper that you find in his pocket. Or possibility three, sometimes yes, sometimes no. All right, which of those three is yours?

Dumont isn't willing to go quite as far as the government did in its filing in the Wurie case (warrants just prevent cops from catching bad guys) -- at least not while speaking directly to the justices.

[M]y in­between rule with the explanation is that for information that is of the same sort that police have always been able to seize from the person, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rule should apply.

That's not an answer, and the Justice Breyer knows it. The government is again arguing for LEO discretion, which isn't a place any court can (or should) draw the line.

Your rule is sometimes. So I say: Sometimes; what's that? And you say if it is the kind of thing that the police could have searched for if it wasn't on the computer, then they can search for it on the computer. Now, since they can search for everything in your pockets before when it isn't the computer, then why isn't yours everything? [...]

So I guess what you're saying is I thought it was category two, sometimes, but really it's category three, always.*

It certainly appears the government has exactly that in mind -- no warrant requirement. Ever. The lawyer claims "sometimes," but refuses to delineate further than "we'll know it when we see it." Here's Dumont again, attempting to craft the haziest bright line ever by arguing that simply being arrested -- never mind actually charged -- removes nearly every expectation of privacy.

[T]he fact of the arrest necessarily and legitimately largely abates the privacy interest of the individual and his person and anything he or she has chosen to carry on the person.

Now, modern technology makes it possible for people to choose to carry a great deal of information. But that doesn't change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find…

Justice Kagan in response:

In other words, one has to keep one's cell phone at home to have an expectation of privacy in it?

Dumont digs in, and the argument gets even worse. Now, he claims citizens need to expect that their cell phones are, for all intents and purposes, open books for law enforcement to avail itself of. If they don't like that "fact," they can just not use a cell phone.

No, we're not saying that at all. But what we are saying is that people do make choices, and those choices have consequences. And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime.

This makes no more sense than the government's argument that a no-fly list doesn't violate anyone's rights because flying is a "convenience." The reality of the situation is that a cell phone -- much like air travel in a country of this size -- isn't really a choice. It's a necessity. But the government acts as though people are complaining about the downside of pure luxuries.

Michael Dreeben, also arguing for the government, thinks the reduction of privacy as the result of an arrest makes this all acceptable. But Justice Ginsburg wonders why, if the person is being detained, is it so impossible to just go and get a warrant?

But, Mr. Dreeben, if the --­­ the understanding was, when there's time, get a warrant. So here, you can seize the phone and you can secure the phone, and you could go to a magistrate and within an hour get permission to search. But what is the reason for cutting out the magistrate here?

In response, Dreeben presents the same hypothetical -- that a criminal will wipe the phone during the hour or so it takes to get a warrant. Dreeben presents only anecdotal evidence from the FBI and other stuff he "heard" from other state police in support of this theory that a majority of criminals have implemented wiping technology.

Justice Breyer:

[Y[ou're saying now we should allow searches of all cell phones because there might be a technology that hasn't yet in fact been used in any of the States that have this rule.

After a lot of arguing over whether the "no warrant" rule would apply to arrests for non-serious criminal activity (the government says it won't but obviously can't really make that promise), Dreeben says this lack of Fourth Amendment protection is the best thing for "society."

At that moment society's interests are at their apogee in locating evidence relating to the crime of arrest and apprehending related suspects, and the suspect has a highly reduced privacy interest.

In the interest of simplification and the establishment of a bright line, the "always obtain a warrant" would appear to be the correct decision, one that still provides Fourth Amendment protections. The government's fear of wiped phones and encryption seems to be largely based on speculation and anecdotes, rather than any documented evidence. There are ways to prevent remote wiping, but the government considers those to be too burdensome to entertain seriously.

The warrant process will always be accompanied by the exigent circumstances loophole, which would allow police to weigh officer and public safety as factors for speedier access. But in most cases -- and most certainly in this one -- there is plenty of time to obtain a warrant. In this particular case, the disputed search didn't occur until two hours after the arrest.

But the government doesn't want a bright line. What it wants is instant access and it expects the public to be perfectly fine with the decision resting in the hands of "officer discretion." But it's extremely doubtful the public has much faith in officer discretion at this point, and the government's own actions have indicated that law enforcement agencies tend to perform a lot of fishing expeditions simply because standing decisions allow them to. Reduced privacy expectations in all things has been the government motto -- it makes NSA surveillance "legal" and allows investigators to dig around in people's electronics.

The justices don't seem to be very moved by the government's assertions. There was a lot of pushing back, which is a good sign. The downside is that these arguments really made no headway towards a more thoughtful approach to modern technology, even with the justices throwing around terms like "Facebook" and "Fitbit."